To the Editor:
Thank you for Dr. Kibbe’s cogent articles on impending Health Insurance Portability and Accountability Act (HIPAA) compliance issues [March 2001, page 43; July/August 2001, page 37; and November/December 2001, page 28]. I have several concerns in the area of mental health as it impacts primary care.
The Health and Human Services (HHS) Web site (www.hhs.gov/ocr/hipaa) gives an excellent summary of the HIPAA requirements, one of which is having separate charts for psychotherapy. This is a gray area for primary care. Often the history (and therefore the chart note) starts by focusing on a physical complaint, but then depression, anxiety or thought disorders emerge.
What is Dr. Kibbe’s interpretation of the HIPAA standard? Aren’t separate charts illegal and stigmatizing? Does this mean that psychiatric medications can’t be listed along with other medications? Will everyone in a group practice have to have the patient sign a release so that the psychotherapy chart will be available to them? I see separating the note for the mental health piece of the patient encounter as clinically unworkable and potentially dangerous for patient care. If no reference can be made in the chart to indicate that there is a mental health disorder, everyone who sees the patient will have to start from ground zero.
Under HIPAA, psychotherapy notes are held to a higher standard of protection. In particular, they are excepted from the Privacy Rule provision granting patients the right to see their medical records. Also, the Rule requires physicians to obtain a separate authorization, rather than the routine consent form, to use or disclose psychotherapy notes to people other than the originator of the notes. This appears to include disclosure to physicians and other providers, although not trainees and residents in teaching institutions. However, to be accorded these additional protections, psychotherapy notes must be kept physically separate from other records.
According to the Privacy Rule, psychotherapy notes are “notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint or family counseling session and that are separated from the rest of the individual’s medical record. Psychotherapy notes excludes medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis and progress to date.”
This definition appears to answer your question about medications.
I can’t provide a legal interpretation or advice. However, it is certainly awkward to have to keep two sets of records, and I share your concerns that this provision may be clinically unworkable. The AAFP and other primary care organizations should make our concerns known to HHS and Congress so as to change the standards.